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International Law, Antonio Cassese, (Oxford, Oxford University Press: 2001)

International Law, Antonio Cassese, (Oxford, Oxford University Press: 2001)3Part I: Origins and Foundations of the International Community

31The Main Legal Features of the International Community

31.1Introduction

31.2The nature of international legal subjects

31.3The lack of a central authority, and decentralisation of legal functions

41.4Collective responsibility

41.5The need for most international rules to be translated into national legislation

41.6The range of States freedom of action

51.7The overriding role of effectiveness

51.8Traditional individualistic trends and emerging obligations and rights

61.9Coexistence of the old and new patterns

82The historical evolution of the international community

82.1Introduction

93States as the primary subjects of international law

93.1Traditional and New Subjects

93.2Commencement of the Existence of States

93.3The Role of Recognition

103.4Continuity and Termination of Existence of States

113.5Spatial Dimensions of State Activities

163.6The Legal Regulation of Space, Between Sovereignty and Community Interests

174Other International Legal Subjects

174.1Insurgents

184.2The reasons behind the emergence of new international subjects

184.3International organizations

204.4National liberation movements

214.5Individuals

245The fundamental principles governing international relations

245.1Introduction

245.2The sovereign equality of States

255.3Immunity and other limitations on sovereignty

285.4Non-intervention in the internal or external affairs of other States

30Part II: Creation and Enforcement of International Legal Standards

306International law-making: Customs and Treaties

306.1Introductory remarks

316.2Custom

336.3Treaties

386.4Codification

386.5The introduction of jus cogens in the 1960s

428Implementation of international rules within national systems

428.1Relationship between international and national law

438.2International rules on implementing international law in domestic legal systems

448.3Trends emerging among the legal system of States

468.4Techniques of implementation

488.5Statist versus international outlook: emerging trends

509State Responsibility

509.1General

509.2Traditional law

519.3The current regulation of State responsibility: an overview

529.4Ordinary State responsibility

579.5Aggravated State responsibility

609.6The special regime of responsibility in case of contravention of community obligations provided for in multilateral treaties

629.7The current minor role of aggravated responsibility

6310Mechanisms for promoting compliance with international rules and pursuing the prevention or peaceful settlement of disputes

6310.1Introduction

6310.2Traditional mechanisms for promoting agreement

6410.3Traditional mechanisms for settling disputes by a binding decision

6410.4The new law: an overview

6510.5The general obligation to settle disputes peacefully

6510.6Resort to traditional means

6610.7Strengthening and institutionalizing of traditional means

6810.8The establishment of more flexible mechanisms for either preventing or settling disputes

70Part III: Contemporary Issues in International Law

7014Collective Security and the Prohibition of Force

7014.1Maintenance of Peace and Security by Central Organs or with their Authorization

7114.2Peacekeeping Operations

7214.3Collective Measures not Involving the Use of Force

7414.4Exceptionally Permitted Resort to Force by States

8014.5Use of force when self-determination is denied

8014.6The old and the new law contrasted

8215Legal Restraints on Violence in Armed Conflict

8215.1Introduction

8215.2Classes of War

8215.3Traditional law in a nutshell

8315.4New developments in modern armed conflict

8315.5The new law: an overview

8415.6Current regulation of international armed conflict

9015.7Current regulation of internal armed conflict

9215.8The role of law in restraining armed violence

Part I: Origins and Foundations of the International Community

1The Main Legal Features of the International Community

1.1Introduction

We jump too quickly to drawing parallels between domestic law and international law.

The features of the world community are unique.

Law doesnt necessarily address itself to individuals, and there are not necessarily central institutions responsible for making law, adjudicating disputes, and enforcing legal norms.

1.2The nature of international legal subjects

Most of rules of international law aim at regulating behaviour of states, not that of individuals.

States are legal entities aggregates of human beings, owning and controlling a separate territory, held together by political, economic, cultural (and often ethnic/religious) links.

Within States: Individuals are principal legal subjects, Legal entities are secondary.

In International community: States (legal entities) are primary subject, individuals are secondary.

Although states dominate international community, they operate through actions of individuals (e.g. ministers, diplomats).

But, individuals act not in their personal capacity, but on behalf of collectivities or multitudes of individuals Hobbes, fictitious person

Powerful drive to submit all persons and all territory to exercise of state control.

State serves to protect individuals from hardship and suffering (as church once did).

1.3The lack of a central authority, and decentralisation of legal functionsNational legal systems

have both substantive rules (about how to behave) and organisational rules.

Organisational rules developed out of power of ruling classes to institutionalise their power and establish relationship between rulers and ruled (Law comes from power).

All modern states:

Use of force by members of community is forbidden (except emergencies) state monopoly on use of violence

Central organs of state responsible for law making, law determination, and law enforcement. Parliament/monarch makes law, court ascertained breaches of law, and police officers enforced.

These functions derive from rule of law, not from interests of individuals.

International legal system

very different because no state has managed to hold power long enough to be able to create a system of law (law comes from power).

Relations between states remain horizontal, no vertical power structure describing laws

Lack of centralised power even more obvious today as individuals and corporations have entangled allegiances, and sources of power are spread across the globe in arenas far beyond state.

Relative anarchy at level of central management in international legal system.

No central body responsible for three areas of law: making, interpreting, enforcing.

States act in their own interests, not in the interests of community.

Each state has power to auto-interpret rules necessarily follows from lack of courts and compulsory jurisdiction ( Legal order is what states will make of it.

Traditional international law thus greatly favoured powerful states who could exert their interpretation of rules over others.

1.4Collective responsibility Responsibility for violations of rules governing behaviour of states falls on group to which s/he belongs (not on individual transgressor) v. different from national legal system which is based on individual, rather than collective, responsibility.

International law works more along lines of tort vicarious liability (e.g. employers) state becomes liable for actions of its citizens.

Wronged State can take action against whole State which wrongdoer belongs to, not just against wrongdoer him/herself. Can claim payment of a sum of money or take counter-measures (e.g. expulsion of foreigners, trade sanctions, etc.)

The whole State community is liable for any breach of international law committed by any State official and that the whole State community may suffer from the consequences of the wrongful act.

e.g. Corfu incident, 1923 Italian ambassadors killed on Greek territory, Italy demanded compensation, Greece refused, Italy sent in troops, League of Nations found Greece negligent in failing to protect diplomats, Italy awarded compensation.

Some say that this form of collective responsibility is characteristic of primitive legal systems (e.g. family feuds, blood revenge).

New trends:

New class of State responsibility for gross violations of fundamental rules enshrining essential values

New class of individual responsibility has emerged (previously only pirates), like personal liability of war criminals.

1.5The need for most international rules to be translated into national legislation International rules to be applied by states within their own legal systems generally have to be incorporated into national law, because doctrine of State sovereignty gives states control over what laws will apply in their territories.

Therefore practice of international law depends on help, co-operation and support of national legal systems.

International law like a field marshal who can only give order to generals generals must give orders to troops.

1.6The range of States freedom of actionNational legal system Individuals have broad freedoms of actions, but they are limited by legal restraints.

Every community has a set of values which individuals are not allowed to deviate from without some legal or social effect.

Limitations existing regarding the functioning of government (e.g. you can only vote when there are elections) and in terms of constitutional rules about liberties/freedoms.

International legal system Classical Approach: Subjects of international law have huge freedom of action nearly unlimited (classically).

States were completely free to decide upon their own domestic matters, which some exceptions re treatment of foreign nationals, for example.

States also had complete freedom re. conduct of their foreign policy and in economic policy. Classically, states could use force when they wanted to, intervene in affairs of other states ( it was a free for all.

The constraints on legal freedom were political, economic, social and cultural but not legal.

International law was thus about negative regulation what was not prohibited was allowed. This favoured states with powers to carry out their wildest dreams.

International Legal System Modern developments: Network of international treaties limits freedom of state action.

Increasing restriction on right to use force.

Covenant of League of Nations (1919) included restraints; UN Charter requires members to refrain from using or threatening the use of any sort of military force.

Customary rule that certain general principles have greater legal force than other rules. Peremptory norms called jus cogens, result is that states must refrain from entering into agreements that violate peremptory norms.

1.7The overriding role of effectiveness International law based on principle of effectiveness: only those claims and situations which are effective can produce legal consequences.

Legal fictions have no place on international scene international law attaches itself to what is real, to what works, not to what is legally, theoretically attractive. (e.g. new situations were not legally valid unless they could be seen to rest on a firm and durable display of authority).

Therefore, force has played an overriding role as effectiveness most easily obtained from the barrel of a gun.

1.8Traditional individualistic trends and emerging obligations and rights1.8.1Reciprocity as the Basis of International Rights and Obligations

International communitys horizontal structure and lack of strong political, economic and ideological links among members has resulted in tendency for states to be self-seeking and self-interested.

The substantive rules governing behaviour of States reflect this self-interestedness.

International rules confer obligations on pairs of States only: each State has a right or obligation in relation to one other State only.

Customary rules:

confer on each member of intl community rights towards all other States.

However, concrete application boils down to standards applying to pairs of States. Violation of customary norms creates legal relationship only between the aggrieved State and offending party.

Consequence is that procedural right of enforcement in violation of a customary norm is earned only by the aggrieved party, not by the intl community no other state can intervene on victims behalf.

Multilateral treaties:

Treaty creates rights for each contracting party to demand fulfilment of obligations agreed to under treaty.

However, breach of that obligation results in effect on one party, and only that party can protest.

This is far from domestic legal systems where breach of obligations (e.g. criminal) can result in intervention of non-party, e.g. Prosecutor.

The result is that reaction to a breach of intl obligation ultimately depends on whether the victim is stronger than or at least as strong as the culpable state ( respect for law depends on power.

Exceptions to this rule:

Piracy Authorised every state to seize and capture pirates on the high seas, whatever their nationality and whether or not they had attacked.

Thus, the right to intervene and maintain legal order conferred not just on injured parties, but on everyone.

But this was not the advent on a new world community; rather states were reacting to safeguard a joint interest.

Rights of riparian states re navigation on international rivers

Every riparian state has a right to free navigation and equality of treatment

If one of those states performs an act preventing another States free navigation, it infringes upon the right of any other riparian state, whether or not it actually causes damage, and that State can intervene (Territorial Jurisdiction of the International Commission of the River Oder, PCIJ, 1929)

1.8.2Community Obligations and Community RightsPresent day:

traditional rules based on reciprocity are still bulk of intl law. But there are a number of treaties which provide for obligations on State towards all other parties and are not reciprocal. This emerged due to new values in intl community.

Features of Community Rights:

Obligations to protect fundamental values (peace, human rights, self-determination of peoples, environmental protection)

Obligations towards all members states of intl community (erga omnes)

Coupled with a correlative right that belongs to any state (or any other contracting state if the rights arise through treaty)

Right may be exercised by any other (contracting) state, whether or not it has been materially or morally injured by action of other state

The right is exercised on behalf of intl community to safeguard values of intl community, not individual state self-interest

Exercise of community rights

Weak mechanisms, by in large, for exercise of these rights

Traditional diplomatic means diplomatic pressure, peaceful counter-measures, verbal expressions of disapproval, economic measures

Some treaties simply proclaim rights without specifying any means by which they could be put into effect

Development of community rights should be not be over-stated, as there is a huge gap between normative level and implementation. Often states end up exercising their community rights only when their own political, economic, military interests are at stake.

BUT there are some intl procedures which can be set in motion not by states but by other aggrieved parties or by international bodies ( creates pressure for fulfilment of intl obligations from parties other than states.

1.9Coexistence of the old and new patterns Traditional Grotian model: international community based on statist vision of IR, characterised by co-operation and regulated interaction between sovereign states, each pursuing own interests

Modern Kantian model: universalist or cosmopolitan outlook, sees world as international community of mankind, not just states, stresses trans-national solidarity.

Two co-exist as international legal system develops and changes.

2The historical evolution of the international community2.1Introduction Evolution of international community can be divided into four stages (see headings below).

2.2The emergence of the present international community before the Peace of Westphalia2.3Stage 1: From the peace of Westphalia to the end of the First World War2.4Stage 2: From the First to the Second World War2.5Stage 3: From the UN Charter to the end of the Cold War2.6Stage 4: From the end of the Cold War to the present3States as the primary subjects of international law3.1Traditional and New SubjectsStates are fundamental, paramount, and primary subject of international community because:

They control territory in a stable and permanent way

They exercise principal lawmaking and executive functions

They posses full legal capacity ability to be vested with rights, powers and obligations.

Other international entities either exercise control over territory for a short time or not at all.

Insurgents emerge through struggle against State to which they formerly belonged:

International community is very unwilling to recognise them.

Their existence is by definition provisional they either win and become fully-fledged States or are defeated and re-assimilated into an existing State.

States and insurgents are traditional subjects of the international community.

New players in international community in 20th century are:

International organisations

Individuals

National liberation movements

All these have limited legal capacity (to have rights and obligations, to act).

3.2Commencement of the Existence of StatesThere are lots of states and they all have different rules and ways of doing things.

Municipal law usually lays down rules for the birth of juridical subjects how is it that an entity becomes legal holders and rights and duties (e.g. persons at birth, corporations).

BUT International community has no legislation laying down rules for creation of states its all based on Customary Law.

Characteristics of States which come to have State personality in international system:

1. Central structure capable of exercising effective control over a human community living in a given territory

Bodies endowed with powers of authority and control over human community must be original, not derived from another legal order (state) but there were exceptions to this in times of protectorates.

2. Territory cannot belong to any other sovereign State, and Community there can no longer owe an allegiance to outside authorities

International law requires effective (not just asserted) possession and control over territory.

There have been limited exceptions to this principle e.g. Governments in exile in times of war a political motivated move based on hopes of return of control over territory. If this prospect vanishes, then other States discard their recognition of the government in exile.

3.3The Role of RecognitionThese are vague criteria for determining existence of State, and probably most important factor is the recognition or not of a new legal entity.

Act of recognition has no legal effect in itself it does not create rights or obligations. This is opposed to view of some scholars in past (19th century) who thought that states were created by recognition, which is wrong because:

who created the first state? It would mean even effective entities (w/ control over territory and population) would not be states if not recognised.

It goes against principle of equality of states, because other states would have authority just by virtue of being born first of acknowledging existence of others.

Present - Recognition has following significance:

1. Political importance, as it testifies to the will of recognizing states to initiate intl interaction w/ new state

2. Legal relevance, proves that the recognizing states consider that the new entity has all factual conditions to become an international subject (this is not binding on other states, but it helps pave the way).

3. Legal relevance, as it bars recognizing State from altering its position and claiming new entity now lacks Statehood (cant go back once youve been recognized)If recognition is granted too soon before factual conditions of statehood are met, like theyre in a civil war it may amount to unlawful interference in internal affairs of State (e.g. Recognition of Croatia in 1992 by EC, Austria and Switzerland when Croatia only controlled one-third of its territory).

Factual conditions required for state recognition:

Effective control over human community and territory New conditions added in 1930s about following fundamental standards (such as ban on wars).

1990s concerns about respect for human rights & minorities and respect for existing international frontiers

(e.g. 1991 EC Declaration on Guidelines on the Recognition of new States in eastern Europe and in the Soviet Union, & Decision of Arbitration Commission in 1992 re Bosnia).

State recognition happens over a period of time, rather than at once by all members of international community. Recognition by some States helps lead the way for others.BUT without recognition by all States, these new entities are still under some obligations towards non-recognizing nations e.g. on high seas, respect for territorial and political sovereignty, creates duties on the non-recognizing States not to invade or occupy the new State, jeopardize its political independence, subvert its domestic political system, or impede its rights to sail on high seas.

There can be situations where a State meets all the conditions (of effective control of territory and people) but is still deprived of statehood e.g Southern Rhodesia (which states refused to recognise for its racist policies), Taiwan. There can also be cases where statehood is granted but rules clearly have been broken (e.g. Northern Turkey, recognised by Turkey only).

3.4Continuity and Termination of Existence of StatesRevolutionary or extra-constitutional change in government of a state does not alter its basic legal personality, so States are bound by international acts performed by previous governments.Tinoco Concessions (GB v. Costa Rica) 1923

F:Tinoco, political leader, overthrew government in Costa Rica and declared new constitution. 1919 Tinoco government toppled, new leadership claimed that all rights granted to British companies under Tinoco government were quashed.

H:Arbitrator held that contracts were binding on Costa Rica, because Tinoco was in actual and peaceable administration without resistance or conflict or contest Changes in territory of a State may affect its legal personality like merger, break-up, or incorporation. In secession, the State continues to exist as a legal subject, and the seceded part may acquire international recognition of statehood.

Issues of state succession arises if one State replaces another in jurisdiction over a territory do the rights and obligations of former State get transferred to other international subject/s? This is dealt mainly by customary rules, to some extent codified in 1978 Vienna Convention on Succession of States in respect of Treaties and 1983 Vienna Convention on Succession of States in respect of State property, archives and debts.

Succession to Treaties:

Localized treaties impose obligations and confer rights with regard to specific territories

Because these treaties attach to a specific territory, they are not affected by fact of State succession, so they are binding on new entity (1978 Vienna Convention, Art. 12)Non-localized treaties do not concern specific territories

Two-tier system:

Newly independent states clean slate new states are not bound by treaties in force at date of succession, to take into account specific needs of decolonization process

Other states due to desire for intl stability, continuity preferred, and States are bound by previously negotiated treaties (1978 Vienna Convention, Art. 34 and 35).

Treaties re Human Rights:

General rule has evolved that the successor State must respect them.Assets & State Archives Definition of what belongs to a State must be drawn from the relevant national law applicable at the moment of succession (1983 Vienna Convention, Art. 8) If assets are indeed public, then State that wields control over territory where assets are located succeeds ownership held by previous territorial State

Debts When a state breaks up and new entities are formed, the State debt of the predecessor passes to the successor States in an equitable proportion (1983 Vienna Convention, Art. 40)

Membership of international organizations

If two states merge, the new state does not necessarily have to apply for new membership (to UN) (e.g when Egypt & Syria merged to form the United Arab Republic, Merger of N. & S. Yemen)

If a member State breaks up, all must apply for membership on their own, except for bit that may successfully claim to be continuation of old State (e.g. Russia after break-up of Soviet Union).

If a new State emerges after secession, it must apply for membership.

3.5Spatial Dimensions of State Activities3.5.1General

Traditional intl law:

Physical dimension of state activity ( earth, portions of the sea (territorial waters small portion of sea around each area of land), and the air (up to the stars, usque ad sidera)Rules

Whoever possessed a territory and exercised actual control over it acquired legal title

For areas subject to no one (terrae nullius) mere discovery was insufficient to assert sovereignty; State needed to display sovereignty and intend to wield it

As a result, eventually whole globe became subject to one States jurisdiction or another. This system heavily favoured bigger states and promoted individualism in intl community.

Exception High Seas

Since 17th Century, there were seen as a thing belonging to everyone (res communis omnium).

Every state could sail it ships or use the high seas as it pleased so long as it did not hamper anyone elses enjoyment.

This was not a regime about community, it was one to allow each state to pursue its own purposes and its own interests.

After WWII 1950s:

Discovery that seabed off the coast of some States contained important resources

Technology allowed greater exploitation of fishing resources on the high seas

Intl community preferred a regime to organize access to these resources on the basis of individualistic free choice and competition, which favoured larger, developed states

Whole development of law of the sea was dictated by sovereignty, nationalism, and laissez-faire attitude

Developing countries convinced intl community to adopt community-oriented principles for the common sharing and exploitation of resources only for the seabed and ocean floor/subsoil. This was seen as the common heritage of mankind, but this has proved to be quite useless because technology is too expensive to develop these resources

3.5.2Territory

Territory that portion of land that is subject to the sovereign authority of a state. Today, there is no territory that is not subject to a sovereign power. States can exercise all their sovereign powers over their territories.Exception ( Antarctic claims to territorial sovereignty by adjacent and discovering states are suspended by treaty

Island of Palmas, 1928 sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular case.

a)Acquisition of Territory

Principal modes of acquiring territory:1. Occupation of land belonging to no one

2. Cession by treaty, followed by effective peaceful transfer of territory

3. Conquest (no longer admissible, due to Declaration on Friendly Relations 1970, codifying a new principle of intl law)4. Accretion physical process whereby new land is formed closed to existing land (e.g. new island at a river mouth)

b)Delimitation of boundaries: the uti possidetis doctrine

3.5.3Sea

Sea has gradually been divided up into sections or areas, each with different legal status and creating different rights and obligations upon States.

1982 Convention on the Law of Sea, entered into force 1994 largely replaces various codification conferences conventions of 1958.

Territorial Sea of States the waters surrounding a States territory and including its bays, gulfs, & straits

Where do you measure the width of the territorial sea from how do you define baselines?

Lots of disputes about its width

Rule used to be that width was three nautical miles the effective range of shore artillery

1982 Convention, Art. 3 States have a right to establish a breadth of their territorial sea up to limit not exceeding 12 nautical miles from the baselines

Art. 5 of 1982 Law of Sea Convention reflects a customary rules normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts official recognized by the coastal state

General principle of low-water line derogated from in case of States whose coast is deeply indented and cut into or states which have fringe of islands off coast

Article 7.1 for such states, method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured

Criteria for drawing straight baselines

Must not depart to any appreciable extent from the general direction of coast

Sea areas lying within the lines must be sufficiently closed linked to the land domain to be subject to the regime of internal waters

Account must be taken of economic interests peculiar to the region concerned

The system in question may not be applied by a state in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone.

States with Bays

Art. 10.2 - Bay defined

Art. 10.4 & 10.5

If the distance between the low-water marks of the natural entrance points of the bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the marks enclosed thereby shall be considered internal waters

If bays entrance exceeds 24 nautical miles, a straight baseline of 24 nautical miles will be drawn so as to enclose maximum area of water possible with a line of such length

Within the territorial sea, state enjoys full sovereignty, subject to right of innocent passage of foreign merchant ships and warships. Foreign ships can pass without prior notification or authorization, provided they do not act prejudicially to coastal state. Coastal state many not exercise criminal jurisdiction over offences committed on board ships within territorial waters, except under conditions in art. 27.1

Internal waters subject to full and exclusive sovereignty of State, no right of innocent passage to other states

Contiguous zones Goes beyond the territorial sea and extend up to 24 nautical miles from baseline

In this zone, state may prevent and punish infringement of its customs, fiscal, immigration or sanitary requirements within its territory or its territorial sea (Art. 33).

Exclusive economic zones

Area beyond and adjacent to territorial sea, extends 200 miles.

Has been gradually established due to discovery of important fishing and mineral resources off coast

Coastal state enjoys sovereignty in some specific matters only for purpose of exploring, exploiting, conserving, and managing natural resources. It has jurisdiction over artificial islands, installations and infrastructures, marine scientific research, and the protection and preservation of marine environment.

Continental Shelf

Part of underwater land - natural prolongation of States land territory into sea, before it falls away into ocean depths. Shelf normally covered with relatively shallow water, Length varies depending on geography

Art. 76.1 sets outer limit of continental shelf up to 200 nautical miles from the baselines from which the breadth of territorial sea is measured

Coastal state has sovereign rights to specific activities exploration and exploitation of natural resources of shelf (oil and fishing resources)

North Sea Continental Shelf case, ICJ rights in continental shelf are an inherent right of state sovereignty over land

Art. 80 coastal state may construct and maintain installations for exploitation of shelf and establish safety zones around these installations up to 500 meters.

Delimitation of continental shelf between opposite or adjacent states has given rise to many disputes: Principle of equidistance (measure equal distance from nearest points of baselines from which breadth of territorial sea is measured) has been found to lead to inequitable solutions ( North Sea Continental Shelf case (Germany v. NL & DK)

High Seas

Beyond contiguous zones and excepting the exclusive economic zones, waters belong to high seas. They are res communis omnium, free for every state to use. Each state has exclusive jurisdiction over its ships.

A state may exercise jurisdiction over foreign ships, using its warships, in some circumstances:

It may approach and board merchant ships to ascertain their nationality, or to establish whether they engage in piracy, slaving, unauthorized broadcasting, etc.

It may arrest and seize any ship engaging in piracy or slave trading and bring those individuals to trial

It may pursue and seize a ship suspected of infringing its laws in its waters right of hot pursuit must be initiated in its waters and ship pursued into high seas. Pursuit must be un-interrupted and cease as soon as pursued ship is out of high seas and into territorial waters of another state.

3.5.4The International Seabed and the Concept of the Common Heritage of Mankind

International seabed Soil and subsoil under high seas

Has been estimated to be rich in minerals, today seems that those were probably over-estimates, and its also not economically feasible to exploit these resources

At the time developing countries advocated for a new community-oriented principle to govern the exploitation of undersea wealth

1967 Maltese Ambassador Arvid Pardo launched notion of common heritage of mankind, world community faced a choice between rampant individualism and community management of global resources

Common heritage of mankind concept:

Absence of right of appropriation

Duty to exploit resources in the interest of mankind in such a way as to benefit all, including developing countries

Obligation to explore and exploit for peaceful purposes only

Duty to pay due regard to scientific research

Duty duly to protect the environment

Art. 136 of Law of Sea Convention reflects this principle

International Sea-bed Authority was provided for in Convention as organ to administer resources collectively

Industrialized countries firmly opposed to new concepts, because

It did not ensure access to seabed minerals

Majority voting did not enable industrialized states which have to bear brunt of costly research and exploitation to have a proportionate role in decision-making

The legal regime of transfer of technology by industrialized countries to the Enterprise and developing countries would be contrary to free play of market forces and penalize developed countries

1994 states reached an agreement on this impasse:

The Authority shall be set up gradually, and its cost for member states kept at a minimum

There is no longer obligation for States to finance the Enterprise The Enterprise is now subject to market forces both its funding and operations are subordinate to the cost-effectiveness criteria

In conformity with new voting system, the Authoritys Council can no longer impose its decision on matters that States deem contrary to their interests

There is no longer obligation to transfer technology from developed countries to Enterprise or developing countries

Although notion of common heritage of mankind has not been rejected, in practice the major benefits that would have accrued to developing countries have been severely watered down, and is thus not such a radical concept anymore.

3.5.5Air

At present, each state enjoys exclusive sovereignty over airspace above its territory and territorial sea Traditionally, states have claimed sovereignty over whole of airspace

No foreign state may fly through without permission or authorization

Over-flight by foreign aircraft allowed due to bilateral and multilateral agreements 1944 Chicago Convention on International Civil Aviation specific rules for civil over-flight3.5.6Outer Space

Outer space starts between 90 and 100 miles above earth

Theoretically, until rockets and satellites were first launched, each state had sovereign rights over its own portion of outer space

However, once rockets and satellites possible, consensus emerged that states (US & USSR) were not required to ask for the authorization of the States above whose territory the satellites were orbiting

As a consequence, outer space immediately considered open to everybody for exploration and use

Through UN Resolutions, Declarations, Treaties, basic legal principles re space law established:

It is not subject to national appropriation by claim of sovereignty, but means of use or occupation, or by another means

Its exploration and use must be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development and shall be the province of mankind (Art. 1 of 1967 Treaty and Article 4 of 1979 Treaty)

It must not be used to put into orbit around the earth, or station in any other manner, objects carrying nuclear weapons or other weapons of mass destruction

Space was subject to regime akin to high seas, except for provision on no nuclear weapons

This is not a legal regime for common interests of mankind, its still a state-interest driven model. Major powers use their space exploration powers primarily for their own good.

1979 Treaty on Moon and other Celestial Bodies (to a large extent become customary law) provides that all substances originating from the moon and other celestial bodies are to be regarded as natural resources belonging to the common heritage of mankind

Question of how to share benefits from exploitation of resources in outer space was left unresolved

3.6The Legal Regulation of Space, Between Sovereignty and Community InterestsThe intl legal regulation of territory and other space shows most clearly the conflict between traditional, state sovereignty approach and modern, community-oriented outlook.

In this area, state sovereignty and self-interest / individualism has dominated (even in the legal realm). The legal regulation of space has been governed by each for himself principle.

The common heritage of mankind concept was advocated by developing countries, but at the same time they were trying to gain control over exclusive economic zones on their coast-lines, and furthermore, they were unlikely to develop technology to exploit ocean bed resources, whereas developed states were. ( Could infer that developing countries were themselves acting out self-interest, rather than out of common humanity.

BUT, 1982 Convention on the Law of the Sea and 1979 Treaty on the Moon still contain the concept of common heritage of mankind, so it may not have lost all relevance at international level.

4Other International Legal Subjects4.1Insurgents Political and military dissidence within a sovereign state results in large-scale armed conflict, with rebels succeeding in controlling some territory and setting up an operational structure capable of wielding authority over individuals who live there (minimum characteristics of states).

When this happens, insurrectional party normally gains some measure of recognition as an intl legal subject.

Insurgents either fail and get crushed by state or succeed and become states themselves with international legal personality. There is a grey area between when they are trying not to get crushed.

States have traditionally been very hostile to insurgents, because insurgents want to topple them.

States thus tend to regard insurgents as common criminals.

They also resist any interference from intl community.

Reasons for even greater reluctance to recognise insurgents in modern times:

Spread of tribal feuds or other conflicts in developing states, due to arbitrary borders drawn by colonial powers

Growing influence of nationalist or religious groups, particularly in states born from collapse or break up of bigger state.

Therefore, growing tendency to deny intl legal standings to rebels.

Evidence of this:

Current regulation of conditions for insurgents to acquire intl legal personality is confused and rudimentary

Rebels should prove they have effective control over territory

Civil commotion should reach a certain degree of intensity and duration.

States (both attacked state and third parties) can decide whether these conditions have been met.

Rebels are automatically upgraded to international subjects engaged in war if:

State they are rebelling against recognizes them and admits it is an intl armed conflict

Third states recognise them

Few examples of this US Civil War, naval blockade of South, recognition of belligerency

Therefore, existence of rebels as intl legal persons may depend on attitudes of other subjects in theory, world community could deny intl legal personality to any rebel group, no matter how effective its control of territory, government, and population.

Things in practice not as bleak for rebels wanting intl standing:

Intl community has various political and ideological alignments someone is bound to recognize the rebels

Even other states may find it useful to recognize rebels as independent legal subject, for example, in order to address claims for protection of foreign nationals to authority that has effective control over territory and population

Rebels also have a hard time because third state are authorized to provide assistance of any kind to the lawful government (including sending military reinforcements), but they are duty bound to refrain from providing any assistance other than humanitarian to rebels.

( this is different if rebels qualify as a national liberation movement

Furthermore, intl rules dont generally address themselves equally to rebels and states

Same Obligations:

Rebels are empowered to enter into agreements with those states that are willing to establish rapport with them

Rebels are to grant foreigners the treatment provided for under international law BUT Different rights

cant claim respect for the lives and property of their nationals (ppl who owe them allegiance)

If a national from insurgent territory lives in another state, other states duty to protect exists only in relation to lawful government that individual is a citizen of, not to rebels

Persons acting as state officials for rebels are treated as individuals, can only be granted international protection by states which grant them recognition

Do not possess any right of sovereignty over territory they control ( they cannot cede the territory or part of it to another state, they merely have de facto not de jure authority

Insurgents are state-like subjects, but they are transient and have limited international capacity. They have only a few international rights and duties. They are associated with a limited number of existing states that grant them recognition.

4.2The reasons behind the emergence of new international subjectsInternational organizations: States have been motivated by expediency and practicality in granting international legal status to them.

This began in 19th Century, but expanded after WWII. Bodies set up after WWII were granted autonomous powers with rights and duties distinct from each member State.

Motivated by belief that a web of international instruments would impose barriers on states and help avoid another world war.

Individuals

Western liberal-democratic theory based on legal entitlements of individuals at root of this emergence of new intl legal subjects

Human rights doctrine logical corollary was that individuals should have opportunity to call states to account before intl bodies if they felt their rights had been violated

Emergence of certain core values of intl community (peace, humanitarian law) States perceived need to hold individuals to certain intl obligations and be able to punish them for breach.

National liberation movements Doctrine of self-determination of peoples key here Freedom from racist regimes of colonial domination Lenin (anti-colonialist version, 1917); Wilson (moderate version, 1918).

4.3International organizations States increasingly find it convenient to set up international machinery for carrying out tasks of mutual interest.

International organizations - object is to create new subjects of law endowed with a certain autonomy, to which parties entrust the task of realizing common goals.

ICJ, Legality of the Use by a state of nuclear weapons in armed conflict

They are but instruments in hands of states.

They have limited competence and field of action states invest them with special powers, inherently limited by state interests and desires for function of particular intl organization.

ICJ, Legality of the Use by a state of nuclear weapons in armed conflict

First created in late 19th century and early 20th century v. rudimentary and concerned with technical matters:

Universal Postal Union, 1875

Union for protection of industrial property, 1883

International Institute for Agriculture, 1905

Various river commissions (Danube, Rhine, etc.)

League of Nations & ILO of greater importance, but they too had hardly any real independence or existence of their own.

But did they have international legal personality?

Many scholars said no.

But some courts said yes ( 1931, Italian Court of Cassation, Istitute Internazionale di Agricoltura v. Profili held that organization had intl legal personality because states had intended organization to be autonomous

Issue became more pressing after WWII, when lots of international organizations were established on various issues.

Political relations UN, OAS, Council of Europe, OAU, League of Arab States

Military relations NATO, former Warsaw Pact

Economic co-operation IMF, World Bank, WTO, EU

Cultural relations UNESCO

Social co-operation ILO, FAO

Test for determining whether an organization is an international legal subject

1.Show that member states, in setting up organization and entrusting certain functions to it, intended to clothe it with the competence required to enable these functions to be effectively discharged( prove that founding fathers intended to create an autonomous body capable of being detached from members

Intention can be inferred from various elements:

Deduced from fact that decisions of principal organs of organization must not be taken unanimously but can adopted by a majority vote

May be spelt out in statute of organization

e.g. ICC Statute, Art. 4.1 ICC has international legal personality.

2.Necessary for the organization in actual fact to enjoy autonomy from member states and effective capacity necessary for it to act as an international subject

1949, ICJ Reparations for Injuries suffered in service of the UN Organizations that do not meet this test are said to be acting on behalf of member states and do not have international legal personality. This means states are collectively responsible for any wrongful act committed by official acting for that organization.

Rights and duties of international organizations with intl legal personality

depends on whatever the states creating it have decided.

But there are some rights which have emerged as generally being held by international bodies:

Right to enter into intl agreements with non-member states on matters within the organizations province (like treaties) Right to immunity from jurisdiction of state courts for acts and activities performed by the organization

- Has come up re employment law

Right to protection for all the organizations agents acting in territory of a third state in their official capacity as international civil servants

1949, ICJ Reparations for Injuries suffered in service of the UN - authoritatively upheld this right

Right to bring an intl claim with a view to obtaining reparation for any damage caused by a member state or third state to the assets of organization or to its officials acting on its behalf (even when victim is national of offending state, functional rather than national bond respected). Some saw this as dangerous attack on national allegiance, Socialist countries didnt like this. 1949, ICJ Reparations for Injuries suffered in service of the UN BUT intl organizations do not always have capacity to enforce these rules if they are breached, because they can often do little more than suspend delinquent member state from participating or voting, or expel it altogether.

With regard to non-member states, intl organizations may be able to invoke rules on state responsibility.

4.4National liberation movementsLiberation movements organized groups fighting against colonial, racist or alien powers

Africa (mainly), Asia, Latin America, to some extent in Europe

Prevalent from 1960s-1980s

Many groups which led national liberation movements eventually acquired statehood (e.g. ANC in South Africa). ]

Others have gone half-way (PLO), still others have been unsuccessful (POLISARIO front in Western Sahara).

Some of these groups managed to controlled territory, but not all. They were usually hosted in a friendly third country.

This distinguishes them from regular insurgents because they were given international status not through their effective control of a territory and its population, but based on international values of self-determination.

No ban is imposed on states to refrain from providing them with assistance (short of sending troops)

States are duty-bound to refrain from assisting the state which is seeking to squash a struggle for self-determination.

Territory is not insignificant though, because national liberation movements to at least aspire or intend to eventually control over some territory.

To be holders of intl rights and obligations, national liberation movements need to have a representative organization or apparatus than can be in contact with the international community.

If it has such an apparatus, it can claim to have international status Geneva Protocol I 1977, Art. 96.3

e.g. PLO has been recognized to have limited international personality

Rights and obligations of national liberation movements:

Right to self-determination a community right

Rights and obligations deriving from general principles on conduct of hostilities

Rights and obligations deriving from rules on treaty-making because their representatives can enter into some treaties, for example, agreements on borders

Right to claim respect for, and protection of, persons acting in their official capacity as organs of the peoples representative structure & their immunity from states courts for acts performed in that capacity

Cannot dispose of the territory or its natural resources under dispute

BUT colonial or dominant power is barred from entering into international treaties concerning the territory of the people concerned

Delimitation of the Maritime Boundary between Guinea-Bissau and Senegal (1989)

4.5IndividualsMany contend that individuals may not be regarded as having the legal status of international subjects. They see individual right to petition before international bodies as an exception, and nothing more than a procedural right because it is cannot be enforced. Cassese thinks it is much more complicated than this.

4.5.1Traditional law

From 17th to 20th Century, during development of intl community, human beings were under exclusive control of states.

If they did acquire some legal relevance internationally, it was beneficiaries of treaties (on navigation, on treatment of foreigners) or as reference points or terrains for state power (diplomatic immunities).

A treaty, being an international agreement, cannot as such create direct rights and obligations for individuals. But object of international agreement may be that the contracting parties adopt some definite rules at national level that create individual rights and obligations.

1928, PCIJ, Advisory Opinion in Danzig Railway Officials Traditional intl law did not include general rules conferring rights on individuals, regardless of their nationality.

Exception piracy:

Some scholars said rules on piracy imposed direct obligations on individuals while at the same time exceptionally authorizing states to seize pirates on the high seas and punish them irrespective of their nationality.

Others said that the intl rules merely obliged states to pass legislation prohibiting piracy and authorized all states to allow their national authorities to arrest, prosecute and punish pirates

Controversial question because at the time, individuals were under full control of states, and it was odd to say that certain individuals had obligations imposed by international rules but did not gain any international rights and powers.

4.5.2Modern law

Today, states have lost their exclusive monopoly over individuals, gradually yielding some powers to international organizations.

Individuals have been granted some legal rights that can operate at an international level and have also been conferred with obligations (like respect for fundamental values).

a)Customary rules imposing obligations on individuals

In armed conflict, international rules that impose obligations on individuals have come into being: should individuals engaged in international war break rules of warfare, they would be criminally liable for such breaches, regardless of their status as state agents

Has evolved to include crimes against humanity genocide, aggression and terrorism, torture).

These obligations are incumbent on all individuals, regardless of the rules within their national legal system.

This puts the international legal system into direct contact with individuals, without having to go through the national legal system for implementation.

Individuals have these obligations both when they act as state officials and when they act in private capacity.

Individuals in breach are criminally liable and can be brought before the courts of any country in the world or before an international criminal tribunal.

b)Holders of the corresponding rightsWho is entitled to enforce these obligations? Two possible views:1It is not possible to consider that individuals are entitled to seek enforcement of those obligations. Only states could make such a claim and have the power to enforce it.

2Individuals have rights to seek enforcement of obligations on other individuals. For the time being, this international right is not met with specific means of enforcement that belong to individuals. They can only institute criminal proceedings against alleged culprits before national courts possessing, territorial, personal, or universal jurisdiction, or they can bring claim to attention of ICC Prosecutor.

There is nothing to prevent states from changing the current situation and granting individuals rights to enforce these international obligations all depends on will of states.

c)Treaty provisions conferring rights on individuals States have increasingly concluded agreements granting human rights to individuals subject to their jurisdiction ( these only be exercised by individuals within the domestic legal system of each contracting party.

States have also provided individuals with right to petition international bodies alleging that a contracting state has breached a human right protected by treaty

( the right to petition international bodies is conferred on individuals regardless of whether or not they are authorized by national implementing legislation of those treaties this right is granted to individuals directly by individual rules.

Limitations on this right of petition:

Individuals only have a procedural right (right to initiate international proceedings before an intl body).

Right is usually limited to forwarding a complaint, because cannot participate an intl proceedings

Exception European Convention on Human Rights, which allows to take part in hearings

Normally individual has no right to enforce or promote enforcement of decision favourable to her. Individual is left in hands of accused state, and cessation or reparation will depend on good will of states.

Exception European Convention on Human Rights state under the obligation to comply and Council of Europe Committee of Ministers can monitor compliance

Right is only granted by treaties therefore only exists with respect to certain matters

e.g. labour relations art. 24 of ILO Constitution grants associations of workers or employers the right to submit complaints.

e.g. human rights Optional Protocol to Intl Covenant on Civil and Political Rights and CERD grants individuals rights to submit communications to human rights bodies. ECHR and Inter-American Convention on human rights grant individuals right to lodge complaints against member states.

Not all states that are parties to above treaties are made accountable to individuals, because states do not have to accept clauses that confer individual rights of petition in order to ratify the treaty. Procedures individuals can initiate are very different from those existing in domestic law.

They are not judicial, although they tend to follow judicial rules

Intl proceedings may be quite rudimentary, particularly in rules on taking of evidence.

Outcome of procedure is not a judgement proper, but more of a report or recommendation, with not legally binding decision.

Individual right of petition ultimately rests on will of states, and could vanish if states terminate treaty or repeal clauses on communications procedures.

But significance of intl right of petition should not be under-estimated:

It indicates state willingness to deprive themselves of some of their sovereign rights over individuals.

Right is being granted to persons as human beings, as nationality doesnt affect your right to bring a petition against a state.

Many states in the end respect the decisions taken by the international complaints reviewing mechanism, despite lack of enforcement.

4.5.3Legal status of individuals in international law

Individuals do posses international legal personality, but it is limited:

They have a few obligations, deriving from customary international law.

They have procedural rights (rights of petition) which benefits individuals, but only if state has signed the treaty and clause conferring that right.

All states are willing to demand individuals respect for fundamental values, but they are less prepared to grant them power to sue states before intl bodies.

5The fundamental principles governing international relations5.1IntroductionNo state was powerful enough during period of crystallization of international community to impose its own legal system or values or set a standard of behaviour at international level.

Values which emerged by consensus of state practice as paramount:

Freedom grant wide sphere of legitimate action to states

Equality start from assumption of legal equality of states

Effectiveness tend to legitimize situations which have acquired de facto force

( laissez-faire approach of classical international law

UN Charters principle values a big departure from this

1. Sovereign equality of states

2. Peaceful settlement of disputes

3. Prohibition of threat or use of force

However, by 1960s clear that these Charter values did not go far enough. Developing and socialist countries wanted a revision to expand and update the Charters core values, because

They wanted their own basic demands in international law

They wanted to discuss, negotiate, and agree upon basic standards of conduct with traditional members of world community

So: UN 1970 Declaration on Friendly Relations (resolution 2626 XXV, adopted by consensus, but not legally binding) added to Charters three first values:

4. Ban on intervention in internal or external affairs of other States

5. Duty of co-operation

6. Good faith

7. Principle of equal rights and self-determination of peoples

However, fact that these were agreed in a resolution does not make them principles of international law. Have to look at state practice to determine whether they in fact have universal scope and legally binding force.

( These principles make up the overriding legal standards that form the constitutional principles of the international community. They help diverse community with often conflicting interests get along somewhat (really?).

5.2The sovereign equality of States5.2.1General

The sovereign equality of states, of all the fundamental principles regulating IR, is the only one that everyone agrees on. It has the support of all groups of States, irrespective of ideologies, political leanings, and circumstances. Whole body of international law rests on idea of sovereign equality of states.

Principle has two distinct notions

5.2.2Sovereignty

Sovereignty confers these powers and rights:

1. Power to wield authority over all the individuals living in a territory

2. Power to freely use and dispose of territory under the States jurisdiction and perform all activities deemed necessary or beneficial to the population living there.

3. Right that no other state may intrude on another states territory (right to exclude others, jus excludendi alios)e.g. Cases of bounty hunters seizing criminals and tacking them back to face trial, violation of countrys sovereignty that criminal was hiding out in. BUT US Supreme Court trampled on this in Alvarez-Machain (1992), holding that capture of a Mexican man wanted to face charges in US court was legitimate and not a violation of extradition treaty.4. Right to immunity for state representatives acting in their official capacity. Acts performed by State officials in international relations are not seen as individual acting on behalf of state, but as state itself acting. As a result, individuals cannot be brought to trial if such actions are contrary to international law. However, there are exceptions in the case of crime and in the case of individual actions in which person would be immune from both foreign jurisdiction and domestic arrest.5. Right to immunity from jurisdiction of foreign courts for acts or actions performed by the State in its sovereign capacity and immunity for execution measures taken against the use or planned use of public property or assets for the discharge of public functions

6. Right to respect for life and property of States nationals and State officials abroad

5.2.3Legal Equality

Formally speaking, no member of the international community can be placed at a disadvantage; all must be treated on same footing.

This means that states which are factually weaker remain in that position and dont get a handicap or special treatment to compensate for structural inequality.

It also means that legal constrains are only valid or legitimate if accepted in full freedom by the State concerned.

5.3Immunity and other limitations on sovereigntyState sovereignty is not unfettered it is restricted by:

Treaties restraints states put on themselves

Customary rules restrains that the international community puts on all states, arising from obligation to respect sovereignty of other states

5.3.1Rights and Immunities of Foreign States

A State may not exercise its sovereign power over, or otherwise interfere, with actions legally performed by foreign States on its territory.

A State may not:

1. Call to account on its own territory a foreign State official for acts performed in the exercise of his functions, except in the case of international crimes (e.g. ICTY)

2. Interfere with foreign armed forces lawfully stationed on its territory (unless authorized by treaty rules or ad hoc consent)

3. Perform coercive acts on board a foreign military or public ship or aircraft (like enforcing its law on foreign plane)

4. Submit to the jurisdiction of their courts foreign States for acts performed in their sovereign capacity

Why?

B/c states should not interfere with public acts of sovereign states out of respect for their independence

B/c judiciary should not interfere with the conduct of foreign policy, by either national or foreign governmental authorities, on the principle of separation of powers this role should be left to responsible international agency

BUT exception for acts performed by a State in a private capacity, as a legal person under private law (i.e. government owning electricity plants) when state is engaged in commercial transaction for sale of goods or supply of services (Il Congreso del Partido, Alcom Ltd. V. Republic of Colombia, UK).5. Seize foreign State property or take any other measure of execution or preventive measures against the property of a foreign State intended for use or discharge of public functions. BUT, can take such measures against property destined for private/commercial functions (i.e. Not the ambassadors briefcase, but yes his textile samples for his fathers company).

Execution measures can normally be taken against bank accounts of foreign States, but some courts dont think that bank accounts opened by foreign diplomatic missions should be vulnerable to seizure because they exist to perform public function of foreign State

5.3.2Immunities of Diplomatic Agents

International customary law grants a host of privileges and immunities to diplomatic agents in Vienna Convention on Diplomatic Relations, 1961.

Most of this Convention declared existing principles of customary law, or have since turned into general law.

Immunities enjoyed by diplomatic agents

Functional immunities - enjoyed as state officials for acts and transactions performed in their official capacity (they are the state, hence cannot be sued)

Property immunities - attach to premises and assets used by foreign state official for accomplishing mission

Personal immunities cover the personal life of the official intended to shelter the foreign official from any interference with their private life that might jeopardize the accomplishment of their official function

Personal immunities are different from other immunities in that they:

cover private acts and transactions (compare to functional, which only covers public acts of state)

arent exemptions from the law of the host state, but exemption from jurisdiction of their courts and enforcement agencies

only apply in relations between sending and receiving state (whereas functional immunities can be invoked against any other state, erga omnes) cease with cessation of the function (whereas functional immunities are permanent)

Property Immunity includes:

Premise of foreign diplomatic mission are inviolable. The mission is not foreign territory, it still belongs to host state, but the enforcement agencies of this state are not allowed to exercise their powers in that area, unless authorized by head of mission

The property of foreign diplomatic mission is immune from search, requisition, attachment, or execution

The diplomatic bag, and diplomatic courier and messages in code and cipher may not be violated

Personal immunities include

Immunity from arrest and detention. If diplomat commits a crime, host state may tell sending state that the agent is a persona non grata and, under Art. 9 Vienna Convention, Host state may then recall the agent or cease her diplomatic function; if neither, the host state can cease to consider her a member of the diplomatic mission Immunity from criminal jurisdiction

Immunity from civil and administrative jurisdiction of the receiving State

except under Art. 31 with regard to

private immoveable property located in the receiving state, unless holding it on behalf of State for purposes of mission

succession

any professional or commercial activity exercised outside her official functions

if diplomat voluntarily submits to local jurisdiction (e.g. if you start proceedings in a local court, you cant suddenly back out and say youre immune from local jurisdiction since you accepted it in the first place).

Inviolability of the diplomatic agents private residence, papers, correspondence, and property

Exemption from all dues and taxes, personal or real, national, regional, or municipal

These immunities normally apply to members of his/her family forming part of the household, provided they are not nationals of the host state.

BUT these immunities dont apply if diplomat has nationality of host state or is a permanent resident (Art 38.1 of Vienna Convention). Such a person only enjoys functional immunity privileges.

(otherwise person could be exempt from any jurisdiction and be unaccountable)

5.3.3Immunities of Consular Agents

Consular agents are not diplomatic envoys there are not in charge of transactions between two States. Rather, their activities are meant to protect the commercial and other interests of the appointing State, provide assistance to nationals of that State, and perform notarial functions (registration of marriages, wills, etc.).

Vienna Convention (1963) codified the customary rules on the legal status of consular agents:

Consular agents do not enjoy personal immunities.

They are only immune from criminal and civil jurisdiction for acts done in the official exercise of their consular duties (functional immunities).

Art 41.1 are not liable to arrest or detention pending trial

Art 41.2 cannot be imprisoned or have their freedom of movement restricted

Consular premises are inviolable, Consular archives and documents cannot be searched / seized.

Art. 49 Consular agents exempt from taxation

Art. 50 Consular agents exempt from customs duties and inspection

5.3.4Immunities of Heads of State and Members of Cabinet

Heads of States, foreign ministers, and other members of Cabinet on official mission abroad have:

Immunity for official acts (functional immunity)

Enjoy privileges and immunities with regard to their premises (home and business) and private acts

These immunities relate to property or person, and are intended to shelter the foreign State official from any undue interference by the host State in his or her private life, which would jeopardize exercise of her/his duties for State

They are only granted to senior State officials on an official visit, not on private visits. When not travelling officially, the host state must afford them special protection, and may grant them some privileges and immunities, but only out of politeness and good will (comity) rather than obligation.

5.3.5Duration of Privileges and Immunities

Functional immunity does not cease with the end of the functions vested in the State official.

Personal privileges and immunities terminate at the end of the mission.

Laperdrix and Penquer v. Kouzouboff and Belin (Paris Court, 1925):

personal immunities do not continue, because diplomatic immunity is set up in interests of government, not in interests of individuals.

If an ambassador commits an ordinary crime in host country, leaves at end of diplomatic mission, and then returns as a private citizen, he may be arrested and brought to trial. Cessation of immunity does not coincide with moment of termination of his/her diplomatic functions in the host State. Diplomat remains protected for a reasonable time after end of posting so that they may make arrangements to leave (even in case of armed conflict).

( Codified in Vienna Convention on Diplomatic Relations, Art 39.2

5.3.6Limitations upon a States treatment of foreigners and individuals

Customary international rules on respect for human rights impose upon States certain fundamental obligations regarding treatment of individuals, whether national or non-national/stateless, on their territories. But these rules are not specific.

Customary rules obligations with regard to foreigners:

Protect them from unlawful attack

Not subject them to military conscription

Not to grossly and systematically infringe their human rights

5.4Non-intervention in the internal or external affairs of other States5.4.1General

Principle of non-intervention in the affairs of other States is one of the most essential tenets of the Grotian classical model of international community.The principle has been enshrined in specific customary rules: Prohibition of a state from interfering in the internal organisation of the foreign State (i.e. deciding which ministry is best equipped to deal with a certain question)

State is not allowed to bring pressure to bear on specific national bodies of other countries (e.g. legislature, judiciary, police)

May not interfere in the relations between foreign government authorities and their own nationals

State must refrain from instigating, organizing, or officially supporting the organization on their territory of activities prejudicial to foreign countries (but this does not cover subversive activities carried out by private persons without authorization of state).

Whenever a civil war breaks out in a foreign country, States are duty-bound to refrain from assisting insurgents, unless they qualify for status of a national liberation movement

Pre-1945 these rules were in force, but a state could choose not to follow them if they thought their interests over-rode the rules (e.g. a state could intervene in affairs of another state if it thought it was under threat from that state).

Post-1945 these principles have renewed importance, particularly to some states, due to:

1. Introduction of far-reaching legal restraints on use or threat of force

2. Drive towards international co-operation, which entailed expansions of inter-governmental organizations which by definition meddle in internal affairs of states, and encourage states to determine exactly which areas of their affairs were immune from any intervention

3. Spread of human rights doctrines, with the ensuing possibility for states and others to press for compliance with human rights standards

Principle of non-intervention ( bridge between traditional sovereignty-orientated structure of intl community and new attitude of States, based on social intercourse and co-operation

5.4.2New Forms of Intervention

Does the ban on interference in internal affairs include economic pressure or coercion, political destabilization, instigating, fomenting and financing unrest? What about more subtle forms of pressure, such as radio propaganda, economic boycott, influencing intl monetary and financial institutions and stifling views of weaker states in those bodies?

Economic pressure:

Decision to withhold economic assistance to developing countries or intl aid agencies is not an infringement, if decision is motivated by difficulties in granting State or change in policy motivated by domestic jurisdictions

However, economic measures designed to coerce another state in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind (principle III of UN Declaration of1970, para. 2) may be run counter to principle of non-interference.

These issues were subject of big debate during Cold War (1960s and 1970s). Socialist and developing countries argued that economic pressure violated rights to non-interference. Western States denied this, arguing that intl law only prohibits intervention by force or by threat of force, and felt that states remained free to influence the policies and actions of other countries.

One area of agreement between West and Socialist and developing countries:

Prohibition of toleration by State A of subversive activities against other states organized in territory of state A.

[5.6 5.10]

Part II: Creation and Enforcement of International Legal Standards

6International law-making: Customs and Treaties6.1Introductory remarks6.1.1Traditional Law

Treaties and Custom are main methods for creating legally binding rules, both responded to need of not imposing obligations on States that did not wish to be bound by them.

Treaties, being applicable only to contracting parties, reflected the individualism prevailing in international community.

Custom, although binding on all members of the community, also rests on consent customary rules resulted from the convergence of will of all States (see Lotus). It was felt that any member could object to the applicability of a customary rule.

Both treaties and custom possessed equal rank of status - reflects unfettered freedom of states. Therefore, a later law repealed an earlier one; a later law, general in character, does not derogate from an earlier one, which is special in character; a special law prevails over a general law. Both treaties and norms could regulate any subject matter, and in any manner the parties chose.

Thus, two or more states could elect to derogate from customary international law, and a new custom supplant an existing treaty.

International rules did not define in detail the processes by which a treaty came into being, because states wished to be as free as possible in their dealings.

6.1.2New Trends

1. Because of emergence of a huge number of states in 20th century with very different values, it was necessary to establish some rules for regulating treaties (establishment, interpretation, etc.)

( Vienna Convention on the Law of Treaties, 1969 ( Vienna Convention on the Law of Treaties between States and International Organizations, 1989

2. A set of fundamental values has emerged, that all states agree to in terms of their content and crucial importance.

A new category of general international rules has come into being jus cogens. They place restraints on the otherwise unfettered freedom of States. They establish a hierarchy within body of international law States may not derogate from these peremptory norms through treaties or customary rules. Therefore, jus cogens superior to all other rules of international law.

3. Now questionable whether states object to the formation of customary rule and thus remain outside it. Rise in community pressure on individual states.

6.2Custom6.2.1General

Statute of the ICJ, Art. 38.1 lists among the sources of law upon which the Court can draw: International custom, as evidence of a general practice accepted as law.

Custom made up two elements

1) General practice (usus, diuturnitas)

2) Conviction that such practice reflects, or amounts to, law (opinio juris) or is required by social, economic, or political exigencies (opinio necessitatis)

Custom vs. Treaties

not normally a deliberate law-making process. When states participate in norm-setting process, they do not act for primary purpose of laying down international rules. Their primary concern is to safeguard their economic, social or political interests. Unconscious and unintentional law-making (Kelsen)

rules are binding on all members of world community, whereas treaties only bind those that adhere to them

6.2.2Elements of Custom

State practice (usus, diuturnitas) Epitomized in ICJ, North Sea Continental Shelf cases: State practice should be both extensive and virtually uniform.

Nicaragua instances of non-compliance with a rule do not mean that the rule has not come into being. State practice need not be absolutely uniform, individual deviations do not necessarily lead to conclusion that no rule has crystallized. Deviations can actually prove that there is a customary rule, because the State or others feel that there has been a breach of something

State conviction (opinio juris or opinio necessitates): Practice evolves among certain States under the impulse of economic, political or military demands. May be regarded as being imposed by these external needs. (opinio necessitatis) If this practice does not encounter strong and consistent opposition from other States, but is increasingly accepted or acquiesced to, a customary rule gradually crystallizes

At this later stage, it may be held that the practice is dictated by international law (opinio juris)

Now states begin to believe that they must conform to the practice not because economic, political or military considerations demand it, but because an international rule requires them to.

Thus, precise moment that a customary rule appears / is born is imprecise its a gradual process over time, culminating in a feeling that states have that they are conforming to a legal obligation.

Rules on continental shelf an example of nascent customary rules based on opinio necessitatis that then turned into opinio juris.

Where there are conflicting interests about the economic or political interests, the usus element may become most importance in the formation of the customary rule. (e.g. important in formation of rules on continental shelf, not so important on use of outer of space, as there wasnt much use!) In other instances, opinio is more important because rule is based on evident and rational grounds (e.g. rules on prohibiting slavery, genocide, and racial discrimination).

6.2.3The role of usus and opinio in international humanitarian law

Usus and opinio play a different role in humanitarian law of armed conflict, due to Martens Clause, adopted in 1899 at Hague Peace Conference, listed 3 main elements of custom:

Until a more complete code of the laws of war has been issued, the High Contracting parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience.

Was taken up in 1949 Geneva Conventions and the First Additional Protocol 1977, and has been referred to by the ICJ in Legality of the Threat or Use of Nuclear Weapons.

Clause puts laws of humanity and dictates of public conscience on same footing as usage of states. Therefore state practice may not need to apply to formation of a principle or rule based on laws of humanity or public conscience.

( usus may be less important regarding international humanitarian law than opinio juris/necessitates.

Expression of legal views by a number of states and other international players about a principle or rule may be enough to lead to formation of a customary rule.

This makes sense, because otherwise customary rules on humanitarian issues could only be created after state practice of atrocity and global rejection of such practice law here being used as an antidote to destructiveness of war, rather than clean-up tool.6.2.4Do customary rules need, at their birth, the support of all states?

Traditional view was the express or tacit consent of all States was required for a rule to emerge in world community.

No longer seen as necessary today.

Once customary rules gradually crystallize, they do not need to be supported or consent to by all states.

It is enough for a majority of states to engage in consistent practice corresponding with the rule, and for those states to be aware that the rule is needed.

States shall be bound even if some of them have been indifferent, relatively indifferent, or have refrained from expressing either assent or opposition to it.

6.2.5Objection by states to the formation of a customary rule

Can a state that objects to the formation of a customary rule dissociate itself from such a rule and thus remain free from the obligations it imposes once it has been consolidated as an international rule? Can states opt out?

Custom at present no longer maintains its original consensual features as in classical theory

Current community-oriented configuration of international relations would make it hard for a state not to succumb to pressure of vast majority of world community

There is no firm support in State practice and international case law for a rule that allows a persistent objector to opt out.

Therefore, a State is not entitled to claim that it is not bound by a new customary rule on the grounds that it has consistently objected to it.

However, strong opposition by Major Powers can slow down development or formation of a new rule.

Some sort of law imposing obligations on those who were not willing to be bound or prepared to be bound is gradually emerging.6.2.6The present role of custom

After WWII, custom increasingly lost ground:

Existing customary rules were eroded more and more by fresh practice and resort to custom to regulate new matters became relatively rare

( due to growing assertiveness of socialist and developing countries, who felt that custom was associated with Wests power over international world order, and wanted legal change through treaty-making.

Membership of the world community is much larger today than in heyday of customary law, and members of the world community are deeply divided. Makes it hard for general rules to gain support from such a diverse group of states

Nevertheless, existence of international organizations facilitates and speed up custom-creating process, at least in areas where States do want those rules to come into being (e.g. UN).

Consent is the common decision-making process, which helps lead states to common denominator principles. This evolves into normative core, which can then become basis for drafting of treaties or evolution of customary rules.

Custom is thus not on the wane everywhere. It remains significant in:

Areas of emerging economic interest e.g. those relating to law of sea, continental shelf, economic zone because solutions to specific issues propounded by one or more states may eventually come to satisfy needs of other states Areas of major


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